The Right to Confront

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Earlier this month, a California trial court judge ruled that the University of California at San Diego must reverse the suspension of a male student whose due process rights UCSD officials violated during a hearing over allegations he assaulted a female student.

The lawsuit is a rare win for accused male students who turn to legal action after having been found responsible for sexual misconduct. While the lawsuit is unlikely to set any true legal precedent unless the university appeals, some experts say that the case could provide a road map for other suspended or expelled students looking to challenge the way universities adjudicate allegations of sexual assault against them.

“I think if any other judge knows about this case, it’s going to more easily allow them to take a similar stance when they see the outrageous way colleges handle these cases,” said Mark Haberkorn, the lawyer who represented the male student and who is now turning his attention to similar lawsuits. “I don’t think schools should be involved in this process whatsoever.”

Rather than focusing on any alleged gender discrimination, as many other cases have, the suit against UCSD accused the university of violating the due process rights of the student by presuming his guilt ahead of a hearing, not allowing the accused student access to witnesses and evidence, and informing a hearing panel of his guilt instead of letting the panel reach its own conclusion.

The judge generally agreed, also criticizing the university for later increasing the student’s suspension from one academic quarter to a year without explanation, and for not allowing him to include as evidence text messages between himself and the alleged victim. The texts show conversations between the two students before and after the alleged assault, including the female student asking the male student to reciprocate oral sex. The female student did not report the alleged assault, which took place in February, until June, and the texts continued until at least April.

Victims’ advocates, however, often warn against giving much weight to the tenor of such correspondence, citing research on the effects of trauma and the psychology of victimization. The female student later told the university that her relationship with the accused student, which mostly consisted of partying and doing homework together, was an attempt to mollify him, as he would grow aggressive when she implied that he assaulted her.

The court records in the case do not name either party, so it was not possible to contact an advocate for the woman in the case. The university did not respond to requests for comment.

A university hearing panel eventually found the male student responsible for “digitally penetrating” the female student despite her protests, though not of an additional charge that he had assaulted her the previous night when she said she was too intoxicated to consent. After an argument about the first encounter, they had sex again the following evening, but the experience, the female student wrote in a statement, left her “feeling pathetic and worthless.”

While the lawsuit seemed to include the texts as a sort of smoking gun, the judge deciding the case singled out a different aspect of the hearing as especially egregious: that the university limited the student’s “right of confrontation,” meaning he was not allowed to cross-examine the accuser, witnesses or the university official who investigated the alleged assault.

“While the court respects the university's determination to address sexual abuse and violence on its campus, after reviewing the administrative record, the court finds that in this particular case, the hearing against [the student] was unfair,” the judge, Joel Pressman, wrote. “The right of cross-examination is especially important where findings against a party are based on an adverse witness's testimony. Here, cross-examination was essential.”

Citing several earlier court cases regarding the due process rights of students and others involved in administrative hearings, Pressman stated that the right of the student -- referred to in the lawsuit and the judge's decision as John Doe -- to cross-examine is considered “as fundamental an element of due process as it is in court trials.” The law does not require institutions to allow for such questioning in all disciplinary hearings, but it does for hearings “where important decisions turn on questions of fact,” the judge wrote in his ruling, noting that allegations of sexual assault rise to such a level.

Because campus hearings are not court trials -- and because federal regulations require protecting victims from hostile environments -- colleges like UCSD often opt to handle cross-examinations by asking the accused student to provide a written list of questions, rather than potentially allowing a rapist to directly confront a victim. The U.S. Department of Education does not dictate whether a college should or should not allow for cross-examination, only that both the accused and the accuser have equal opportunities to do so if is allowed.

According to the UCSD’s “Hearing Procedures for Alleged Sex Offense Harassment or Discrimination,” students accused of sexual assault are permitted to submit questions to a hearing officer or panel chair who can relay the questions to the accuser. That person is allowed to exclude any questions that he or she considers to be unduly repetitious or irrelevant.

In Doe’s case, the chair opted not to ask 24 of the 33 questions he submitted, and she rephrased the remaining questions. The questions were mostly concerning the text messages between the two and their continued relationship after the alleged assault. One question attempted to make clear that the female student never actually said Doe had digitally penetrated her, only that he attempted to while she told him to stop. Doe denies this attempt, as well, but wanted to clarify the allegations, his lawyer said.

“The court determines that it is unfair to [Doe] that his questions were reviewed by the panel chair for her alone to determine whether or not the question would be asked and then answered by the witness,” Pressman wrote. “While the court understands the need to prevent additional trauma to potential victims of sexual abuse, this can be achieved in a less restrictive manner. The limiting of the questions in this case curtailed the right of confrontation crucial to any definition of a fair hearing.”

The judge also lambasted the university for presenting the university’s Office for the Prevention of Harassment & Discrimination’s findings to the panel, without allowing Doe to cross-examine the official who conducted the investigation. “Based upon the totality of the circumstances and the evidence presented, I find it more likely than not that Mr. Doe ignored [the female student’s] objections to sexual activity in violation of the Student Sex Offense Policy,” the official stated in her report.

Unlike criminal proceedings, colleges use a lesser standard of proof known as “preponderance of evidence,” which means the panel must feel that there is a 50.1 percent -- “or more likely than not” -- chance that the accused student committed the misconduct. By presenting the OPHD investigation without allowing the official to be questioned or Doe to view any of the statements that led to her conclusions, Pressman wrote, the university “improperly delegated the panel’s duty to an outside witness that was not present at the hearing.”

It was the panel’s job to decide the student’s culpability, he wrote, not simply to defer to an investigator’s judgment.

Gary Pavela, former president of the International Center for Academic Integrity, said this conclusion is the core of Pressman’s decision, and the ruling could have wider ramifications for colleges, as it’s perhaps “the first time a court has looked carefully at the investigatory process” in a contemporary campus sexual assault case.

“I would expect other judges to look at these kinds of issues and also be concerned that the investigator is reaching a conclusion of guilt or innocence on the same standard the hearing panel is supposed to use,” Pavela said. “Here we have someone held up as an expert, and they’ve concluded this guy is guilty, so what’s the panel supposed to think? If we want credible, enforceable, reliable sexual assault polices, we’ve got to have adequate due process for the accused, because that will create legitimacy in the process for everyone.”

The judge's decision and Pavela's comments echo those in a February open letter from University of Pennsylvania law professors, who wrote that “it is difficult to understand, particularly in light of the absence of fair procedures, how a panel would not defer to the ‘expertise’ of the investigative team, which has already conducted a full investigation.”

In an analysis of the case, Erin Buzuvis, director of the Center for Gender and Sexuality Studies at Western New England University, said that institutions can still fulfill their obligations under Title IX of the Education Amendments of 1972 without taking the shortcuts the University of California at San Diego seemingly did. It's important, she said, that colleges that are increasingly aware of their Title IX obligation to address sexual assault also remember their “obligation to provide fair and meaningful hearings to students” who are accused of sexual assault.

“Not only for the sake of students who are accused, but victims and their advocates have a stake in the integrity of the process as well,” Buzuvis said. “It is possible to hold fair hearings and comply with Title IX, and that is what colleges and universities should be striving to do.”